INTRODUCTION TO

CONSTITUTIONAL AND
CRIMINAL LAW

LSC0154

WEEK 2:
CLASSIFICATION OF
CONSTITUTIONS

Department of Legal
Studies
Sem 3 (20/21)
 Constitution can be classifies
based on

The ease with

The distribution of
The form it takes which they can be
powers
(Written and amended
(Federal and
Unwritten) (Rigid and
Unitary)
Flexible)
Written and
Unwritten
Constitution
Written Constitution

Constitution is classified as written

if there exits a single document
codifying the most fundamental
constitutional rules of the state.

This formal single document sets

to lay down the framework for
the operation of the organs of
government.
 Examples of written
constitution

The Constitutions of the

The Federal Constitution United States of
America

The Federal Constitution The US Constitution was

was drafted in 1957 by framed in 1787
an independent Royal consisting of 7
Commission headed by important Articles and
Lord Reid. It has 183 supplemented by a
Articles and 13 number of
Schedules. amendments.
 When a constitution is codified in a
documentary form, the powers of the state
are clearly discernible.

Federal Constitution
US Constitution
Art. 39 explains about the executive
Art. 1 vests legislative power in the Congress
authority of the Federation
Art. 2 reveals that executive power is
Art. 44 provides that the legislative authority
conferred on the US President
shall be vested in a Parliament.
Art. 3 provides information about the terms
Art. 121 explains the judicial power of the
of office and the powers of the judiciary.
federation
 The rights of a nation’s
citizens can also be
ascertained from a
written constitution.

In the USA there is Bill

of Rights which is a
supplemented written
In Malaysia, the
list of rights and
fundamental liberties
freedom which the US
had been stated in
citizens are entitled to.
Part 2 of the Federal
The Bill of Rights
Constitution.
obtain its power from
the 1st Amendment of
the US Constitution.
 Unwritten Constitution
An unwritten
constitution refers to
when the constitutional
laws are not codified in
one single document but
can be found in
ordinary legislations.
 The United
Kingdom
Constitution.
 The United Kingdom (UK) is now the only major country to have an unwritten
form of constitution.

There is no single document dealing with matters relating to constitution.

In other words, there is no single document entitled “the British Constitution”.

The reasons for the UK not having a written constitution is mainly as a result of
history.

The UK’s institutions evolved gradually over several centuries. Therefore, it has
not been thought necessary to frame a single document which would deal with
matters relating to the constitution.

Usually, the framing of a written constitution is associated with any event that
necessitated an abrupt change in constitution.

For example, defeat in war, a revolution, a major change in political ideology or

the transition from being a colony to an independent state (UK had always been
the empirical power).
 The constitutional
laws of the UK can
be found
scattered in many
sources
 This power to make and
The absence of a ‘higher’ Another consequence of
unmake any law is
constitutional law places this unwritten
referred to as the
the UK Parliament in a constitution is that it is
doctrine of
uniquely powerful relatively easy to change
parliamentary
position. the constitution.
sovereignty.

Whereas in countries
Legislation of
which have written Equivalently, any
constitutional
constitution, amendment to laws that
significance can be
constitutional is related to constitution
introduced through the
amendments will have can be done in a similar
ordinary law-making
to go through special manner.
process.
procedures.
 Written
Constitution
vs
Unwritten
Constitution
 Rigid and
Flexible
Constitution
 This classification of constitution
refers to the ease with which a
constitution can be changed or
amended.

By contrast, a rigid constitution is This classification was first

one where the law can only be proposed by Lord James Bryce in a
amended by some special series of Oxford lectures at the end
procedure. of the 19th century.

According to Lord Bryce, a flexible

constitution is one where all the
laws of the constitution can be
amended by the ordinary law-
making process.
 A V Dicey in his book The Law of the
Constitution defined the terms rigid
constitution as “one under which certain
laws generally knowns as constitutional
or fundamental laws cannot be changed
in the same manner as ordinary laws.

Whilst flexible constitution is described

as “one under which every law of every
description can legally be changed with
the same ease and in the same manner
by one and the same body”.
 The US Constitution is classified as rigid.

In its hundreds’ years of existence, it has

only been amended 27 times.

The process to amend the US Constitution is

laid down in Art. 5 where an amendment is
proposed by either a two-thirds vote in
Congress or a national convention of two-
thirds of the states.

Those proposal are then ratified by either

three-fourths of the state legislatures or by
state conventions (an agreement between
states covering particular matters,
especially one less formal than a treaty) in
three-fourths of the states to become
amendment added to the US Constitution.
 The UK Constitution is flexible. It can be legally changed quite readily.

As British Constitution is in the form of ordinary legislations, methods and

procedures to amend it also would be the same as amending any other
laws.

However, it is observed whilst the UK Constitution may be flexible but

political factors may impede radical constitutional reform.

For example, it will take a very extraordinary circumstances for legislation

to be enacted or amended to abolish the Monarchy or extend the life of a
Parliament in the UK.
Federal and
Unitary
Constitution
 A Federation is usually
formed by a group of
A federal system of states each previously
government is one that independent of one
divides the powers of The USA and Malaysia are another or separately
government between the examples of countries governed coming together
national (federal) practicing federalism. and transferring certain
government and state or governmental powers to a
local government. set of national (federal)
organs while retaining
other powers themselves.
 There are two main features of a federal
constitution:

Distribution of governing Alteration of governing

powers powers
 • Under a federal constitution, government powers are
divided between the federal organs of state and the
organs of the individual states or provinces that make
Distribution of up the federation.
governing power
• Generally, matters such as defense, foreign policy and
economics fall under the jurisdiction of the federal
government.

• Article 74 of the Federal Constitution provides for the

subject matter of the Federal and State Laws.
Example
• The 9th Schedule contains 3 list, List 1 (Federal List), List
2 (State List) and List 3 (Concurrent List)
 • Any alteration of the distribution of powers between
the federal organs and the state organs can only be
achieved by amendment of the constitution and not by
a simple Act of Parliament.

• The individual states cannot have their power reduced

Alteration of
in that way.
governing power
• Any amendment to the constitution which involves a
re-distribution of powers between the federal and the
state organs will require some special procedure that
generally allows the individual state some voice in the
decision.
 Dicey observed
that it means “the
concentration of
A unitary state is
the strength of the
where power is
state is in the
concentrated in
hands of one
one body or in a
visible sovereign
single source.
power be that
Parliament or
Czar”.

Under a unitary
Thus, a unitary constitution, all
system has no states powers are
separate provincial vested by the
government. constitution in
central organs.
 However,
under the
This is so even
British
though the
Constitution,
United Scotland,
All state ultimately the
Kingdom is Wales and
powers are Parliament at
regarded as Northern
vested in the
The UK has a having four Ireland enjoys
central organs Westminster
unitary component varying
at has power to
constitution. parts i.e., degrees of
Westminster make law for
England, devolved/regi
and any of the
Scotland, onalized
Whitehall. regions and
Wales and power.
can repeal the
Northern
legislation by
Ireland.
which power
was devolved.
 For example, in 1986
by means of the Local
Government Act 1985
However, as the UK is Parliament abolished
a unitary state, the the Greater London
Parliament can at any Council as the
The UK also has a time by means of Parliament at that
developed system of simple Act of time deemed it as
local government and Parliament reduce the unnecessary and
local authorities powers of or even wasteful.
having the power to abolish these local
make by-laws and authorities.
administer certain
services in their
locality.